After Recent Ruling, America’s Commercial Drone Pilots Come Out of the Shadows

Low aerial video highlights of a large field of sunflowers near Waxahachie, Texas, shot last year by Hawkeye Media of Texas.

It’s blue skies for U.S. drone entrepreneurs!

For the last two years, the FAA has been sending nastygrams to anyone caught flying model planes or other unmanned arial vehicles over U.S. airspace for “commercial purposes” — like professional photography, journalism or farmland surveying. But last week, a judge clipped the FAA’s wings, ruling that the agency doesn’t have the authority to regulate small unmanned drones.

As you’d expect, the ruling is being welcomed by the recipients of the FAA warnings, who’ve been using drones for a variety of purposes — and can now do so without fear of a $10,000 fine.

Matt Gunn, an independent drone pilot in Cleveland, says last week’s court ruling against the FAA mounts to “mud being flung in their face.”

Gunn is among more than a dozen small-scale drone operators whom the FAA ordered to cease-and-desist their commercial work with unmanned vehicles. The operator of Gunn Photography in Ohio says he never stopped performing commercial services such as agricultural mapping and real-estate filming despite the cease-and-desist letter.

“There wasn’t any sort of validity to it in my opinion,” he says.

How true that is.

An administrative law judge of the National Transportation Safety Board on Thursday agreed with Gunn’s assessment.

The agency was reviewing a $10,000 fine levied against renowned drone operator Raphel Pirker. He got dinged for “recklessly” doing a commercial shoot of the University of Virginia with a 4.5-pound Ritewing Zephyr-powered glider . He challenged the citation, contending the FAA had no authority to regulate model-aircraft drones because the public wasn’t given a chance to comment on the agency’s rules .

Pirker’s legal battle spotlighted a commercial drone scene in the United States operating in a grey area. the FAA’s cease-and-desist letters to operators of commercial model aircraft have forced some companies to shut down. Others, however, continued their aerial filming and crop and real estate surveying businesses underground — or sometimes right in the open.

Jack Quirk, the operator of KJ Productions in Oklahoma, applauds the ruling. (.pdf) He had gotten a cease and desist letter, too. “I continued operating, but carefully,” he says.

He specializes in filming car dealerships and oil fields.

“I didn’t directly charge for the aircraft. I would charge for the production and include the aircraft for it,” he says. “It’s kind of embarrassing. Your customers come to you. You have to do this shady deal to be able to use it. This decision will help me to go back to where I was. I can market openly and not be too worried about it.”

The case turned on an argument made by Pirker’s attorney, Brendan Schulman, who maintained that the FAA could not simply declare a regulation without having a public notice-and-comment period. His argument went like this: Congress has delegated to its bureaucracy the authority to make rules, but when new regulations have a substantial impact on the general public, the government must have hearings and take comments.

Schulman won that argument Thursday.

“I think the decision is also important because it establishes that before the federal government imposes reasonable restrictions on new technologies, the government must consult with its citizens and obtain comments on how those restrictions will affect people,” he says. “That’s a very important part of our legal system.”

Pirker lives in Hong Kong, so the decision won’t immediate affect him, other than nullifying his five-figure fine.

But don’t expect the Amazons of the world to begin immediately delivering packages via drones. The FAA is still under orders by Congress to adopt rules governing drone use for commercial purposes. The agency has begun the process of formally enacting rules that might better survive a legal challenge. The rules won’t likely be open for public debate until year’s end.

Phil Jackson, the IT director of commercial real estate firm Price-Edwards in Oklahoma, had used drones to survey the properties he was offering until he received a cease-and-desist letter from the FAA more than a year ago.

“We haven’t flown a drone in a long time,” he says.

However, Jackson said Price-Edwards isn’t going to immediately let loose the Phantom quad-copter they were employing. “We’re willing to comply with whatever rules are set forth,” he says.

The term drone — appropriated from the military’s unmanned aerial vehicles — is relatively new. But model air-planing has a long history. Just 20 years after the Wright brothers’ first flight, the nation’s first National Aeromodeling Championships were held in 1923. The American Academy of Model Aeronautics, of Muncie, Indiana, boasts some 170,000 members today.

The 2007 Federal Register describes what an unmanned vehicle is: “They range in size from a wingspan of 6 inches to 246 feet; and can weigh from approximately 4 ounces to over 25,600 pounds.”

For Mark La Boyteaux, the operator of Hawkeye Media in Texas, he immediately dismissed a cease-and-desist letter he got 17 months ago from the FAA.

He continued shooting commercials for the City of Dallas, and filming local banks, commercial real estate and farmland.

“My own personal opinion was it was not illegal,” he says. “I never stopped. I just ignored it.”